11 S.D. 237 | S.D. | 1898
Plaintiff’s cause of action is thus stated in her complaint: “(1) That Earnest Glidden is the son of said defendant, and was on the 17th day of August of the age of 13 years, living at home with his said father, and under his custody, care, and control. ■ (2) That prior to said 17th day of August, 1895, said defendant carelessly and negligently purchased
Does the complaint state a cause of action? It was not assailed until the trial began, and it must be liberally construed. Our Civil Code provides that “neither parent or child is answerable, as such, for the act of the other.”’ Comp. Laws, §
The charge of the court, taken as a whole, substantially conforms to the law as herein announced. As a preliminary and general declaration of a parent’s liability, the court uses this language: “You will understand as a proposition of law that a father, as such, is not liable for the ordinary acts of his infant son.” Standing alone and unqualified by other portions of the charge, this sentence does not correctly state the law, and the use of the word “ordinary” might mislead a jury; but the words quoted are followed by such plain and explicit directions regarding the facts necessary to a recovery by plaintiff that it is impossible to believe that the verdict was influenced by the preliminary statement given above. The language of the court is as followé: “In order to hold the father liable you must be satisfied by a preponderance of the evidence that the boy had been repeatedly careless in the use of the gun as claimed by this plaintiff. You must further find by a preponderence of the evidence that after Mr. Glidden, this defendant, the father, had been informed and notified of the fact that this
Finally, it is contended that the evidence is insufficient to sustain the verdict. In discussing this phase of the case it must be remembered that the jury were at liberty to believe the witnesses for plaintiff, and that every fair and reasonable inference must be drawn from their testimony which can be to sustain the verdict. Viewedan this light, the jury were warranted in finding that the defendant kept a shotgun in his house which his son was permitted to use wheneyer he desired,